The General Counsel for the National Labor Relations Board (“NLRB”) issued a landmark memorandum yesterday broadly opining that most non-compete agreements violate Section 7 of the National Labor Relations Act (“NLRA”) and directing the NLRB’s various regions to make challenging overbroad non-compete agreements an enforcement priority. After the NLRB’s sweeping decision this February in McLaren
National Labor Relations Board (NLRB)
Virginia further limits confidentiality and non-disparagement agreements and restricts the use of employee social security numbers
As the 2023 Virginia legislative session comes to a close, Governor Glenn Youngkin signed into law two new pieces of legislation that will expand the Commonwealth’s existing restriction on employee confidentiality agreements and restrict how employers may use employee social security numbers. Both new laws go into effect July 1, 2023.
Expanded prohibition on confidentiality…
NLRB aiming to take pro-labor action in the areas of technology-based monitoring and surveillance and blocking charges
Last week, the National Labor Relations Board signaled two additional areas in which it intends to pursue its labor-favorable agenda over the remainder of the 2022 year and beyond.
First, on October 31, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum stating her intention to zealously enforce the National Labor Relations Act (the “Act”) with respect to what she has called “intrusive or abusive electronic monitoring and automated management practices.”
Second, on November 3, 2022, the Board issued a proposal to roll back 2020 amendments to its election regulations with respect to so-called blocking charges.
Technology-based monitoring and surveillance
In her October 31 memorandum, the General Counsel expressed concern that “close, constant, surveillance and management through electronic means” constitutes a threat to “employees’ ability to exercise their rights” under the Act. The General Counsel specifically stated that electronic surveillance and automated systems can limit or prevent employees from engaging in protected activity, including conversations about the terms and conditions of their employment or of unionization. She also claimed that employer-issued devices or required applications on employees’ personal devices may extend surveillance to nonworking areas, including to rest areas within an employer’s facilities and non-work areas outside of the workplace. This, the General Counsel speculated, “may prevent employees from exercising their Section 7 rights” from engaging in concerted activity anywhere and may lead to retaliation and discrimination on the basis of protected activity. The memorandum goes on to provide a two-pronged approach towards dealing with these perceived threats to employees’ rights.…
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NLRB reverses precedent on dues checkoff obligations
Continuing a string of pro-union decisions, the National Labor Relations Board recently overruled a 2019 Board decision and held that employers violate federal law if they fail to transmit membership dues to unions after the expiration of a collective bargaining agreement.
In its 2019 decision in Valley Hospital Medical Center, Inc., 68 NLRB No.
NLRB reverses precedent on employer dress codes and joint employer standard
Consistent with its pro-union agenda, the National Labor Relations Board recently reversed precedent established under the prior administration with respect to employer dress codes and the joint employer standard. Specifically, on August 29, 2022, the Board held that an employer’s dress code policies preventing employees from wearing pro-union apparel were unlawful. Furthering its agenda, on September 6, 2022, the Board released a new proposed joint employer standard, which would roll back the current standard established under the prior administration, making it much easier for companies to be deemed joint employers.…
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Complying with OSHA’s ETS? Don’t forget about your duty to bargain, says NLRB
Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.
The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.…
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Labor law under the Biden administration: A preview of the PRO Act
At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.” Although he has only been in office a short time, his administration is already taking steps to honor that pledge. Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act. The PRO Act previously passed the House in February 2020 and President Biden has committed to sign it into law if passed in this Congress. If enacted, the PRO Act will fundamentally reshape the American workplace. …
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NLRB greenlights company policy allowing searches of workers’ personal property on company premises and company devices and networks
In another victory for employers and a further retreat from Obama-era policy, the National Labor Relations Board (“NLRB” or the “Board”) recently ruled that employers do not violate the National Labor Relations Act (“NLRA” or the “Act”) by maintaining a policy that allows employers to monitor employees on the job by searching employees’ personal property on company premises and/or company networks and devices.
In a June 24, 2020 decision – Verizon Wireless, 369 NLRB No. 108 (2020) – the NLRB reversed an Administrative Law Judge’s (“ALJ”) ruling that Verizon Wireless and its related entities’ (collectively, “Verizon”) policy permitting company searches of workers’ personal property violated Section 8(a)(1) of the Act by infringing upon employees’ rights to engage in concerted activity for mutual aid or protection under Section 7 of the Act. The Board also upheld the ALJ’s ruling that another portion of Verizon’s policy permitting company monitoring of company computers and devices did not violate the Act.
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Judge denies implementation of portions of major union election rule changes
On May 30, 2020, a U.S. district court judge issued an order that prevents certain provisions of a new rule governing election procedures from going into effect. However, employers should note that the National Labor Relations Board (NLRB) intends to implement all other portions of the new rule that the court’s order did not address, effective immediately.
The new rule, which the NLRB issued at the end of 2019, amended procedural revisions from 2014 related to the processing of union representation cases. Critics of the 2014 revisions argued that those revisions truncated the time frame between the filing of a petition and the preelection hearing, making it difficult to simultaneously meet various obligations triggered by the filing while also preparing for the hearing.
In many respects, the new rule marks a return to pre-2014 procedures and practices, and provides parties with additional time in multiple areas of the election process.
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Responding to COVID-19 in a unionized workplace
While all employers are facing an unprecedented whirlwind of rapidly changing circumstances as a result of the COVID-19 pandemic, employers with unionized workforces face additional challenges as they take action in response to the outbreak while trying to avoid running afoul of the requirements of their collective bargaining agreements and the National Labor Relations Act (NLRA). Here are a few suggestions for employers to consider as they navigate this new landscape.
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